Selbe et al v. Peak Campus Management, LLC
Filing
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ORDER GRANTING (1) MOTION FOR FINAL APPROVAL OF CLASS AND COLLECTIVE ACTION SETTLEMENT; AND (2) PLAINTIFFS' AND CLASS COUNSEL'S MOTION FOR AWARD OF ATTORNEYS' FEES, LITIGATION COSTS, AND ENHANCEMENT AWARDS. Signed by Judge Maxine M. Chesney on April 29, 2016. (mmclc1, COURT STAFF) (Filed on 4/29/2016)
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ERIC B. KINGSLEY, Bar No. 185123
eric@kingsleykingsley.com
LIANE KATZENSTEIN LY, Bar No. 259230
liane@kingsleykingsley.com
KINGSLEY & KINGSLEY, APC
16133 Ventura Boulevard, Suite 1200
Encino, CA 91436
Telephone: (818) 990-8300
Facsimile: (818) 990-2903
JOSHUA M. DAVID (Admitted Pro Hac Vice)
jdavid@davidkampfrank.com
NICHOLAS A. NUNES (Admitted Pro Hac Vice)
nanunes@davidkampfrank.com
DAVID, KAMP & FRANK, L.L.C.
739 Thimble Shoals Boulevard, Suite 105
Newport News, VA 23606
Telephone: (757) 595-4500
Facsimile: (757) 595-6723
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Attorneys for Plaintiffs
NICHOLAS SELBE, DANIEL GHYCZY,
MAKAELA O’CONNELL, and ANNIYA LOUIS,
on behalf of themselves and all others similarly
situated
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Counsel Continued on Next Page
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
NICHOLAS SELBE, DANIEL
GHYCZY, MAKAELA
O’CONNELL, and ANNIYA
LOUIS on behalf of themselves and
others similarly situated,
Plaintiffs,
v.
PEAK CAMPUS MANAGEMENT,
LLC,
Case No. 3:14-cv-3238-MMC
[PROPOSED] ORDER GRANTING:
(1) MOTION FOR FINAL APPROVAL
OF CLASS AND COLLECTIVE
ACTION SETTLEMENT; AND
(2) PLAINTIFFS’ AND CLASS
COUNSEL’S MOTION FOR AWARD
OF ATTORNEYS’ FEES, LITIGATION
COSTS, AND ENHANCEMENT
AWARDS
Defendant.
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ORDER GRANTING MOTION FOR FINAL
APPROVAL OF CLASS AND COLLECTIVE
ACTION SETTLEMENT
Case No. 3:14-cv-3238-MMC
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Continued From Previous Page:
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ELIZABETH STAGGS WILSON, Bar No. 183160
estaggs-wilson@littler.com
LITTLER MENDELSON, P.C.
633 West 5th Street, 63rd Floor
Los Angeles, CA 90071
Telephone: (213) 443-4300
Facsimile: (213) 443-4299
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SHANNON R. BOYCE, Bar No. 229041
sboyce@littler.com
FATEMEH MASHOUF, Bar No. 288667
fmashouf@littler.com
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Floor
Los Angeles, CA 90067
Telephone: (310) 712-7304
Facsimile: (310) 553-5583
Attorneys for Defendant
PEAK CAMPUS MANAGEMENT, LLC
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ORDER GRANTING MOTION FOR FINAL
APPROVAL OF CLASS AND COLLECTIVE
ACTION SETTLEMENT
Case No. 3:14-cv-3238-MMC
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ORDER
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Plaintiff’s unopposed Motion for Final Approval of Class and Collective Action
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Settlement and Plaintiffs’ and Class Counsel’s Motion for Award of Attorneys’ Fees,
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Litigation Costs, and Enhancement Awards (the “Motions”) came on regularly for
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hearing on April 29, 2016, at 9:00 a.m., in the United States District Court for the
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Northern District of California, the Honorable Maxine M. Chesney presiding. All
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parties were represented by counsel.
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Having considered the memoranda and declarations, oral arguments of counsel,
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and the relevant statutory and case law, the Court GRANTS Plaintiff’s and Class
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Counsels’ Motions and orders and finds as follows:
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1.
The Court FINDS that no member of the Rule 23 class or the FLSA
collective action has objected to the settlement.
2.
The Court FINDS that the settlement is fair and reasonable, and,
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therefore, the Motion for Final Approval of Class and Collective Action Settlement is
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GRANTED.
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2.
The Parties’ proposed Stipulated Settlement Agreement of Class Action
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Claims (the “Settlement”), which the Court preliminarily approved with certain
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modifications as set forth in the Order Regarding Motion for Preliminary Approval of
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Class and Collective Action Settlement (ECF No. 108), is APPROVED as so
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modified.
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3.
The following Class and Collective Action is finally certified for
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settlement purposes only pursuant to Federal Rules of Civil Procedure 23 and
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29 U.S.C. § 216(b):
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All persons who have submitted a “Consent to Join Collective Action”
in the instant Lawsuit prior to June 1, 2015 (“Opt-In Class Members”)
and all individuals employed in the State of California between
January 1, 2011 and August 1, 2014 who were employed in any of the
following “Covered Positions”: All Star; Community Advisor;
ORDER GRANTING MOTION FOR FINAL
APPROVAL OF CLASS AND COLLECTIVE
ACTION SETTLEMENT
Case No. 3:14-cv-3238-MMC
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Community Assistant; Leasing All-Star; Work for Rent Leasing AllStar; or any combination thereof (“California Class Members”)
(collectively, “Class Members”).
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4.
The appointment of Plaintiffs’ attorneys, Joshua M. David of
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David, Kamp & Frank, L.L.C. and Eric B. Kingsley of Kingsley & Kingsley, APC as
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Class Counsel is confirmed.
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5.
The appointment of Nicholas Selbe, Daniel Ghyczy, Makaela O’Connell,
and Anniya Louis as Class Representatives is confirmed.
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The appointment of Simpluris as the Settlement Administrator is
confirmed.
7.
Under Federal Rules of Civil Procedure 23(h) and 54(d) and Section 216
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of the FLSA, 29 U.S.C. § 216(b), Plaintiffs and Class Counsel have moved for an
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award of attorneys’ fees, enhancement awards, and litigation costs.
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8.
This class action and collective action settlement resolves a wage-and-
hour dispute on a class-wide basis.
9.
The Court’s December 30, 2015 Order granted preliminary approval of
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the Settlement, pursuant to which Plaintiffs and Class Counsel requested payment
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from the Settlement Amount of attorneys’ fees of thirty percent (30%) of the
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Settlement Amount, equating to $240,000.00, litigation costs of $24,473.43, and
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enhancement awards for the Class Representatives totaling $24,000.00 to be allocated
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$8,000.00, $8,000.00, $4,000.00, and $4,000.00, respectively.
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10.
Rule 23(h) provides that, “[i]n a certified class action, the court may
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award reasonable attorney’s fees and nontaxable costs that are authorized by . . . the
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parties’ agreement.” The Rule further provides that “[a] claim for an award must be
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made by motion under Rule 54(d)(2),” notice of which must be “directed to class
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members in a reasonable manner” and that the Court “must find the facts and state its
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legal conclusions under Rule 52(a).” Fed. R. Civ. P. 23(h)(1) & (3). In turn,
ORDER GRANTING MOTION FOR FINAL
APPROVAL OF CLASS AND COLLECTIVE ACTION
SETTLEMENT
Case No. 3:14-cv-3238-MMC
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Rule 54(d)(2) requires a claim for fees to be made by motion, and specifies its timing
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and content, including, in relevant part, “the grounds entitling the movant to the
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award” and “the amount sought.” Fed. R. Civ. P. 54(d)(2)(B).
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11.
All Class Members were advised of Class Counsel’s request for an award
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of fees and costs in the Court-approved Class Settlement Notices. As directed by the
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Court, on February 9, 2016, Plaintiffs and Class Counsel filed a separate Motion for
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Award of Attorneys’ Fees, Litigation Costs, and Enhancement Awards (ECF No.
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110). In the Class Settlement Notices, all Class Members were advised how to obtain
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a copy of the Motion either from PACER or the Settlement Administrator’s website
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where the Motion is readily available.
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12.
When “the settlement produces a common fund for the benefit of the
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entire class, courts have discretion to employ either the lodestar method or the
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percentage-of-recovery method” of calculating attorneys’ fees awards. In Re Bluetooth
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Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011).
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13.
Under the percentage-of-the-fund method, it is appropriate to base the
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percentage calculation on the gross settlement amount. See generally Boeing v.
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Gemert, 444 U.S. 472, 479 (1980); Williams v. MGM-Pathe Commc’ns Co., 129 F.3d
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1026, 1027 (9th Cir. 1997).
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14.
The Court adopts the percentage-of-the-fund approach here and finds that
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the attorneys’ fees and litigation costs requested are reasonable. The fee award of
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thirty percent (30%) of the fund is within the range of reasonable percentage fee
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awards in this Circuit. Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d
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1301, 1311 (9th Cir. 1990) (stating that the Ninth Circuit has historically considered
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twenty-five percent of the common fund a “benchmark” figure for attorneys’ fee
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awards); Knight v. Red Door Salons, Inc., 2009 U.S. Dist. LEXIS 11149, at *17, 2009
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WL 248367 (N.D. Cal. 2009) (stating the exact percentage varies depending on the
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facts of the case, and in “most common fund cases, the award exceeds that
ORDER GRANTING MOTION FOR FINAL
APPROVAL OF CLASS AND COLLECTIVE ACTION
SETTLEMENT
Case No. 3:14-cv-3238-MMC
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benchmark.”); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.
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1989) (“Ordinarily, however, such fee awards range from 20 percent to 30 percent of
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the fund created.”).
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A lodestar cross-check reveals that the attorneys’ fees requested, 30% of
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the common fund amount, equating to $240,000.00, is substantially less than the
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lodestar amount of $449,195.00. The Court finds that Class Counsel’s hours and
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hourly rates are reasonable, thus, the requested fee award results in a “negative
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multiplier” and the lodestar cross-check supports a finding that the requested
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percentage of the fund, 30%, is both fair and reasonable.
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Litigation costs are routinely awarded in addition to attorneys’ fees. See
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Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994); Odrick v. UnionBanCal Corp.,
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2012 U.S. Dist. LEXIS 171413, at *17, 2012 WL 6019495 (N.D. Cal. Dec. 3, 2012);
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Knight v. Red Door Salons, Inc., 2009 U.S. Dist. LEXIS 11149, at *20 (N.D. Cal. Feb.
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2, 2009). Class Counsel have advanced all costs incurred in this case and request
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reimbursement from the common settlement fund in the total amount of $24,473.43,
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including $23,223.43 in costs incurred and $1,250 in anticipated costs. Class Counsel
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has provided a detailed itemization of these costs, and the Court FINDS that these
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costs are reasonable.
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17.
The Court has the discretion to award enhancement awards, or incentive
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fees, to named class representatives in a class action suit. Van Vranken v. Atl.
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Richfield Co., 901 F.Supp. 294, 299 (N.D. Cal. 1995).
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enhancement awards to the Class Representatives in this case are justified.
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18.
The Court FINDS that
Accordingly, Plaintiffs’ and Class Counsel’s Motion for Award of
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Attorneys’ Fees, Litigation Costs, and Enhancement Awards is GRANTED. Class
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Counsel is awarded a fee of thirty percent (30%) of the Settlement Amount, equating
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to $240,000.00, and litigation costs of $24,473.43. The Class Representatives are
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awarded total Enhancement Awards of $24,000.00, to be allocated $8,000.00 each to
ORDER GRANTING MOTION FOR FINAL
APPROVAL OF CLASS AND COLLECTIVE ACTION
SETTLEMENT
Case No. 3:14-cv-3238-MMC
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Nicholas Selbe and Daniel Ghyczy and $4,000.00 each to Makaela O’Connell and
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Anniya Louis.
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19.
The Settlement Administrator shall distribute the Settlement Amount to
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the Class Members, Class Counsel, the Class Representatives, and the LWDA as
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specified in the Settlement Agreement and this Order.
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IT IS SO ORDERED.
Dated: April 29, 2016
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MAXINE M. CHESNEY
United States District Judge
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ORDER GRANTING MOTION FOR FINAL
APPROVAL OF CLASS AND COLLECTIVE ACTION
SETTLEMENT
Case No. 3:14-cv-3238-MMC
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